* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A. No. 17982/2011 (O.XXXVII R.3 (5) CPC) in CS (OS) No.
1142/2011
% Reserved on: 19th November, 2013
Decided on: 6th January, 2014
YUVRAJ SINGH ..... Plaintiff
Through: Mr. S.K. Jain, Advocate.
versus
DELHI DEVELOPMENT AUTHORITY ..... Defendant
Through: Mr. M.K. Singh, Advocate.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1.
By this application the Defendant seeks leave to defend the suit.
2. Learned counsel for the Defendant contends that the present suit for recovery does not fall within the scope and ambit of Order XXXVII CPC. No cause of action ever accrued in favour of the Plaintiff and against the Defendant. The Defendant constituted a Committee to look into the matter relating to bills of the Plaintiff which found certain lapses and thus a Vigilance Inquiry has been ordered into the same. The entire records relating to the concerned Division Office and the works in dispute are in the custody of the Vigilance Branch. It is the case of the Defendant that the Claims No. 6 to 10 are beyond the scope of the agreement and the Defendant is not entitled to pay anything to the Plaintiff on the said count. Further as regards I.A. No. 17982/2011 in CS (OS) No. 1142/2011 Page 1 of 6 the Claim No. 1 the Third Running Bill is under scrutiny and necessary action will be taken only after the administrative decision by the department. Regarding Claim No. 2 it is contended that the security can only be released after the payment of the final bill. The payment, if any, regarding Claim No. 3 can only be made after taking of the administrative decision after the inquiry is over. Regarding Claim No. 4, the payment, if any, for the work executed will be duly considered at the time of payment of the final bill. Further the Claim No. 5 is not tenable as the quantum of work was washed away with water and is not required to be paid by the Defendant. The case of the Plaintiff is unsubstantialed and sham and no case for summary trial is made out. Hence the Defendant be granted unconditional leave to defend to contest.
3. Learned counsel for the Plaintiff on the other hand contends that the defence taken by DDA is not defence in the eyes of law and thus the application is liable to be dismissed. Merely because an inquiry is pending before the Vigilance Department of the Defendant, the claim of the Plaintiff cannot be denied. The vigilance inquiry is only against Shri S.K. Sethi, the then Executive Engineer of the Defendant on the complaint of the Plaintiff regarding demand of bribe for releasing the payment. It is an unequivocal I.A. No. 17982/2011 in CS (OS) No. 1142/2011 Page 2 of 6 admission on the part of the defendant DDA, its officials and the Committee that the plaintiff has done the work for which the plaintiff is entitled to payments.
4. I have heard learned counsel for the parties.
5. The Plaintiff has filed the present suit for recovery of Rs. 1,99,18,881/- against the Defendant for construction of internal road/foot path and parking at Yamuna River, West Bank, Vijay Ghat, Pushta. The bid of the Plaintiff was accepted and he was awarded a tender vide letter dated 28th June, 2007. The case of the plaintiff is that the parties agreed that the time for completion of work would be four months, the date for starting the work was 8th July, 2007 and the date for completion of work was set as 7th November, 2007. The estimated cost put to tender was Rs. 35,81,969/- and the accepted tender amount was Rs. 44,06,973/-. After receipt of the Award Letter, the Plaintiff arranged infrastructure, labour, material etc. for execution of the work as per the schedule of quantities and thus invested a huge amount of money for execution of work. The site was full of bushes and long grass which was required to be cleared. The Plaintiff submitted these facts and also submitted the rates to be charged for the extra work of jungle clearing and total station survey along with the detailed analysis of I.A. No. 17982/2011 in CS (OS) No. 1142/2011 Page 3 of 6 rates in the last letter. The Plaintiff mentioned in the said letter dated 10th July, 2007 that he would not be accepting any rate less than the market rates. The Plaintiff also informed the Defendant about the resources deployed by him at the site. The Defendant directed the Plaintiff to clear the Jungle under the extra item and the Plaintiff executed the work accordingly which can be verified from the Hindrance Register. The Defendant failed to provide required drawings to the Plaintiff and recorded in the Hindrance Register at site on 24th July, 2007 that alignment plan and sections for the road to be constructed were not available with them. Thus the Defendant felt that total station survey is necessary for preparation of working drawings. However, the Defendant failed to conduct the survey work. The Plaintiff informed the Defendant that the labour, material and staff etc. of the Plaintiff were lying idle at the site and made requests to the Defendant to issue working drawings so that the work could be taken up, but to no avail. The Defendant was not having the full working drawings of the project and therefore, the Defendant directed the Plaintiff to conduct the total station survey of the site under extra item for preparation of the working drawings. The Plaintiff executed the work on total station survey and completed the job on 21 st August, 2007 I.A. No. 17982/2011 in CS (OS) No. 1142/2011 Page 4 of 6 to the satisfaction of the Defendant. There were other various hindrances which had to be resolved by the Defendant.
6. From the narration of the facts in the plaint itself it is evidently clear that the Claims No. 6 to 10 were beyond the agreement. In view thereof the Plaintiff is required to prove by leading evidence that there was an agreement between the Plaintiff and the Defendant for the said work and the Defendant is liable to pay for the same. Further the facts mentioned in the plaint are disputed by the defendant. As per the documents filed by the plaintiff, the defendant had given extension of time reiterating clearly that time was the essence of the contract. Thus which of the parties caused the delay is required to be adjudicated. The case of the defendant as per the letters is that the claim of the plaintiff regarding deployment of staff was false, as on surveys by the officers of the defendant the same was found to be incorrect. At this stage the only thing which has to be seen is whether the defendant has made out triable issues. In view of some of the claims being beyond the agreement and others denied by the defendant, I am of the considered opinion that the Defendant has made out a case for grant of leave to defend.
7. Application is, therefore, disposed of granting leave to defend. I.A. No. 17982/2011 in CS (OS) No. 1142/2011 Page 5 of 6 CS (OS) No. 1142/2011
8. Written statement be filed within four weeks. Replication be filed within four weeks thereafter.
9. List before the learned Joint Registrar on 18th March, 2014 for admission/denial of the documents.
(MUKTA GUPTA) JUDGE JANUARY 06, 2014 'vn' I.A. No. 17982/2011 in CS (OS) No. 1142/2011 Page 6 of 6